Indigenous treaties in Australia

Indigenous treaties in Australiaare proposedbinding legal agreementsbetween Australian governments andAustralian First Nations(or other similar groups). A treaty could (amongst other things) recognise First Nations as distinct political communities, acknowledgeIndigenous Sovereignty,set out mutually recognised rights and responsibilities or provide for some degree ofself-government.[1]As of 2024,no such treaties are in force, however the Commonwealth and all states except Western Australia have expressed support previously for a treaty process. However, the defeat of theVoice referendumin 2023 has led to a reversal by several state branches of theLiberalandNationalparties in their support for treaty and a much more ambiguous expressed position by state branches of theLabor Partyas well as Labor governments.[2]

Moves to state and territory treaties were boosted by theVictorian government's establishment of a legal framework for negotiations to progress, announced in 2016 and withthe election of the First Peoples' Assembly in 2019.Support shown for Indigenous issues by the June 2020Black Lives Matter rallies across Australiaalso increased support for treaty processes.

Background

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The objects of treaties between governments and Indigenous peoples may include:

Research by theHarvard Project on American Indian Economic Developmentshows thatself-determinationis an essential component in redressing entrenched disadvantage.[3]

Many Aboriginal Australians have said that a treaty or treaties would bring them real as well as symbolic recognition, and national debate has occurred for many years on the topic, alongside related matters such asIndigenous recognition in the Australian Constitution,land rights,and programs aimed at reducing disadvantage such asClosing the Gap.[citation needed]This type oftreatywould involve a formal agreement which defines the relationship between government and First Nations peoples, and could include binding contracts on specific issues as well as practical measures relating to health and education.[4]

British colonial representatives negotiated treaties with Indigenous peoples inNew Zealandand inCanadaduring early phases of settlement.[5]TheTreaty of Waitangiwas concluded in 1840 at time when the futureColony of New Zealandwas then part of theColony of New South Wales.British treaty-making in North America began as early as sixteenth century and continued untilCanada gained self-government in 1867,after which time the Canadian federal government entered into theNumbered Treaties(1871 to 1921). Colonial treaties also featured in African history: a chief of Bonny (in present-day Nigeria) in 1860 explained that he refused a British treaty due to the tendency to "induce the Chiefs to sign a treaty whose meaning they did not understand, and then seize upon the country".[6]

History

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Indigenous treaties have been discussed since the early years of the Australian colonies. In 1832 the Governor ofVan Diemen's Land(nowTasmania),George Arthurremarked in the aftermath of theBlack Warin the colony that it was "a fatal error...that a treaty was not entered into with the natives". He recommended to theColonial Officethat, before thecolonisation of South Australia,an understanding be reached with the Aboriginal peoples there, in a bid "to prevent a long-continued warfare".[7]Notably, theLetters Patent establishing the Province of South Australiaof 1836 (unlike theSouth Australia Act 1834,which it amended), included recognition of the rights of theAboriginal peoples of South Australia.[8][9]

The only pre-21st century attempt to negotiate a treaty with Indigenous Australians was what came to be known asBatman's Treaty.This was an agreement betweenJohn Batman,apastoralistand businessman, and a group ofWurundjerielders, for the purchase of land aroundPort Phillip,near the present site ofMelbourne[10]The so-called treaty was declared void on 26 August 1835 by theGovernor of New South Wales,Richard Bourke,[11]which declared that all land within the colony belonged to the Crown and that it had the sole authority to dispose of it.[12][13]While the Crown retains the right to dispose of any land under the doctrine ofradical title,some inherent Indigenous rights to land have been recognised undernative titlelaw.

An Indigenous treaty was first promised by Prime MinisterBob Hawkein 1988 after receiving theBarunga StatementfromAboriginal elders,which called for such a treaty to be concluded. Despite public interest and growing support, concerns were raised over possible implications of such a treaty, such asfinancial compensation.[14][15]

21st century

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In 2017, Prime MinisterMalcolm Turnbullrejected the proposal for anIndigenous voice to parliament,it being the first request of theUluru Statement from the Heart,which also included a request for treaty.[14][15]

With no progress made towards an Indigenous treaty at federal level (despite decades of debate),[7]in the early 21st century a number of states and territories began treaty negotiations with their Indigenous peoples.[4]The 2017Uluru Statement from the Heartincluded the request: "We seek a Makarrata Commission to supervise a process of agreement-making between governments and First Nations andtruth-tellingabout our history "[16](Makarrata being aYolnguword for "a process of conflict resolution, peacemaking and justice"[17]).[18]

In July 2019,Ken Wyatt,recently appointed to the new role ofMinister for Indigenous Australians,gave an address to theNational Press Club,in which he spoke of the theme ofNAIDOC Week2019: "Voice. Treaty. Truth.". He spoke of the development of a local, regional and national voice, and said "with respect to Treaty, it's important that states and territory jurisdictions take the lead. When you consider the constitution, they are better placed to undertake that work".[18][19][20]

With theVictorian government's creation of a legal framework for Indigenous treaty negotiations in 2018 with theirFirst Peoples' Assembly,the debate rose to prominence across Australia again,[7]with impetus added by the June 2020Black Lives Matter rallies across Australia.[21][22]

As of 2022,there are no treaties between the federal or any state government in Australia in force.[23]

State and territory treaty processes

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TheVictorian governmentofDaniel Andrewswas the first at state level to pass a legal framework for Indigenous treaty negotiations, in 2018,[4]but there have been various moves made to instigate such a process in all states and territories in the 21st century.

Issues covered by an Indigenous treaty with a state government are likely to include health and education.[5]

New South Wales

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The New South Wales Labor party committed to funding and beginning treaty discussion as an election promise prior to winning government in March 2023.[24]David Harrishas been appointed as minister for Aboriginal Affairs and Treaty.[25]However, Harry Hobbs has stated that he believes the government has become much more vaguer and uncommitted when talking about treaty, having become apprehensive following the failure of the Voice referendum.[2]

Victoria

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The Victorian government was the first at state level to pass a legal framework for Indigenous treaty negotiations, in 2018.[4][26]In 2018, TheVictorian Liberal Partyopposed a state-based Indigenous treaty, stating that a federal treaty would be more appropriate.[26]Opposition politicianBernie Finnalso stated that sinceAboriginal Victorianswere Victorian citizens, the state would be making an Indigenous treaty with itself, an argument rejected by the government.[27]By 2022 the Victorian Liberal Party supported treaty.[28][29]

On 3 July 2018, the government passed the first Australian treaty law, theAdvancing the Treaty Process with Aboriginal Victorians Act 2018,[30]effective 1 August 2018.[31]The ultimate goal of a partnership between the Victorian government and Aboriginal communities "is to achieve reconciliation and justice for Aboriginal communities", and the Act enshrines such a partnership in law.[3]

The2019 Victorian First Peoples' Assembly electionwas held to choose the representatives for Aboriginal and Torres Strait Islander people in Victoria.[32][33][34]only 7% of the eligible voters turned out to vote.[35]

On 16 August 2022, TheVictorian Legislative Councilvoted 31 votes to three for the Treaty Authority and Other Treaty Elements Bill 2022. The 3 who voted against the bill were the twoLiberal DemocratsTim QuiltyandDavid Limbrickand former Liberal turnedDemocratic LabourBernie Finn.[36]

On January 21 2024, the Victorian Liberal and National opposition announced that they would be withdrawing its support for treaty, reversing their previous support for the proposal.[37][38][39][40]

Queensland

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In 2019 theQueensland governmentofAnnastacia Palaszczukannounced its interest in pursuing a pathway to an Indigenous treaty process.[41]The Treaty Working Group and Eminent Treaty Process Panel were set up, withJackie HugginsandMichael Lavarchco-chairing the Eminent Panel. TheirPath to Treaty Reportwas tabled inQueensland Parliamentin February 2020 after they had consulted widely, across more than 1,700 Queenslanders and 24 communities between July 2019 and early 2020,[42]and presented to Deputy Premier, Treasurer and Minister for Aboriginal and Torres Strait Islander PartnershipsJackie Trad.Huggins said that a process oftruth-telling,acknowledging the history of Australia, is a "vital component to moving on".[43]

On 13 August 2020, Premier Palaszczuk announced that the government would be supporting the recommendation to move forward on a Path to Treaty with First Nations Queenslanders. She said that the Treaty Advancement Committee would provide independent advice on the implementation of the panel's recommendations.[44]

In 2023 the Queensland Parliament passed thePath to Treaty Act 2023(Qld), which established the First Nations Treaty Institute, an independent statutory body to assist First Nations prepare for the upcoming treaty process. The act also created the Truth-telling and Healing Inquiry, to record and report on the impact of colonisation on Indigenous Queenslanders.[45]The bill passed with bipartisan support. The only 4 who voted against it, were the MPs from theKatter's Australian PartyandOne Nationwho voted to reject it.[46]

On 19 October 2023, a few days after the2023 Australian Indigenous Voice referendumthe oppositionLiberal National Party of Queensland(LNP) leaderDavid Crisafulliannounced that they would be withdrawing its support for treaty, reversing their previous support for the proposal.[47][48][49]

The oppositionLiberal National Party of Queensland(LNP) won the2024 Queensland state electionand directed that the Truth-telling and Healing Inquiry end.

Western Australia

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As of January 2024, Western Australia is the only jurisdiction without a formal treaty process ongoing.[2]However, in 2015 theWestern Australian GovernmentofColin Barnettsigned a $1.3 billionnative titlesettlement with theNoongarpeople,[50]which was described by deputy opposition leaderRoger Cookas "a classic treaty",[51][7]and Ken Wyatt called it "a treaty in the true sense".[18]

The comprehensiveSouth West Native Title Settlementaims to resolve native title claims in exchange for statutory recognition of the Noongar people as thetraditional ownersof South-Western Australia.[52]As of 2020it is the largest native title settlement in Australian history, affecting about 30,000 Noongar People and encompassing around 200,000 km2(77,000 sq mi) in south-western Western Australia. It has been described as "Australia's first treaty" by legal academicsHarry HobbsandGeorge Williams.[53][54]Hobbs later described these agreements as a "small 't' treaties" as while not negotiated though a formal treaty process, many of the outcomes are similar to those that would result from that process.[2]

By 2018, WA had announced plans to establish an Aboriginal representative body in the state.[14]

South Australia

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In 2016 theSouth Australian governmentofJay Weatherillannounced it intended to negotiate up to 40 treaties with Indigenous groups across the state, and that $4.4 million would be set aside over five years for the purpose.[30][55]In December 2016, talks began between the government and three Aboriginal nations: theNgarrindjeri,NarunggaandAdnyamathanhapeoples. Following the July 2017 report of the South Australian Treaty Commissioner, negotiations began.[7]In February 2018, the Buthera Agreement was signed with the Narungga nation, of theYorke Peninsula.[56]

Following the Weatherill government's defeat in the2018 state election,incoming premierSteven Marshallpaused the treaty negotiation process that had been begun by his predecessor,Jay Weatherill,stating he wanted to focus on "practical outcomes".[57][58]

In 2022 the Labor government returned to office, with Premier Peter Malinauskas, committing to restart the treaty process.[59]Journalist Mike Seccombe stated in January 2024 that the Malinauskas government appears committed to continuing the treaty process and is not in immediate danger of losing office, so further treaty progress "seems likely".[2]

Tasmania

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OnAustralia Dayin 2015, theTasmanian Greenscalled for a formal treaty to be negotiated between theTasmanian Governmentand theTasmanian Aboriginal community.[60]Michael Mansell,chair of theAboriginal Land Council of Tasmania,said in August 2019 that non-Indigenous people need not fear a treaty, as it would "simply be an expression of true democracy and self-determination". At that point, only 300 km2(120 sq mi) of the 67,000 km2(26,000 sq mi) of Tasmania had been returned under theAboriginal Lands Act 1995(Tas).He said that returning a few key areas of uninhabited wilderness which was nowCrown landwould mean jobs for Aboriginal people.[61]

In June 2020, Mansell and Greg Brown,Tasmanian Aboriginal Corporationboard member, had their first meeting with PremierPeter Gutwein,and raised the matter of a treaty.[62]Mansell had been heartened by the support shown for Aboriginal issues across Australia in theBlack Lives Matter protests sparked by the death of US man George Floyd,and spoke at theLauncestonrally of the need for a Treaty Commission.[63]

In 2021, Premier Peter Gutwein announced the beginning of a treaty and truth telling process, beginning with consultations with the State's Aboriginal population.[64]An Aboriginal Advisory Group held its first meeting in February 2023.[65]However, certain Indigenous groups have described their distrust of the government and have alleged that the government 'only willing to listen to six people as part of their government-selected group'.[65]The issue of deciding who should be counted as Aboriginal for the purpose of treaty negotiation is yet to be decided, with many Aboriginal people expressing anger and frustration with what they believe are a greater number of people falsely claiming Aboriginal status and what they believe is government encouragement of this practice.[66]

Northern Territory

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In 2018 theNorthern Territory GovernmentofMichael Gunnerpledged to undertake a treaty process with Indigenous peoples of the Territory,[7]including the appointment of an Independent Treaty Commissioner to oversee negotiations.[67]In June 2018 Gunner signed the "Barunga agreement",amemorandum of understandingcommitting his Government to negotiate with the Territory's fourAboriginal land councilsover the next three years to develop a treaty process.[68]

The process will be overseen by an independent treaty commissioner, who in the first stage will undertake consultations for one year with the Indigenous communities to gauge their interest in a treaty. In the second stage, a public discussion paper will be released, translated into major Aboriginal languages for consultation and feedback. A final report will then be tabled in theNorthern Territory Legislative Assemblywithin 18 months of stage one's completion.[68]

On 4 March 2019,Mick Dodsonwas appointed Treaty Commissioner, agreed by all four NTland councilsand the Minister. He is tasked with presenting a final report within 2.5 years.[30]The Treaty Commission, in a discussion paper published in July 2020, has said: "Some of our Elders are very old... the process oftruth-tellingmust begin as soon as possible. It is urgent ". Truth-telling is an essential step, and must take place before the negotiations for treaty get under way, which can take a long time. Because the NT is not a state, treaties negotiated with the NT Government could be overruled by the Federal Government, thereby limiting their effectiveness. There are also challenges in cases wheretraditional owners' lands extend across state borders, and where members and descendants of theStolen Generationshave not been able to find who their people are and therefore may not qualify asFirst Nationspeople. The Treaty Commissioner would be handing his report to theChief Ministerin 2022, after which negotiations would begin.[69]

In 2023, the Commission was abolished, with the Territory government arguing that further time and consultation was needed before moving forward on treaty.[70]The government denied that it was no longer acting on treaty issues, with directly government treaty symposia held in April 2024.[71][72]

The NT oppositionCountry Liberal Party(CLP) opposed Treaty.[73][74]

TheCountry Liberal Party(CLP) would win the2024 Northern Territory general election.

See also

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References

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  6. ^ Isichei, Elizabeth Allo(1983). Isichei, Peter Uche (ed.).A History of Nigeria.Vol. 2. London: Longman. p. 362.ISBN9780582643314.Retrieved12 April2021.
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  9. ^Draft of the Order-in-Council Establishing Government 23 February 1836 (UK),National Archives of Australia
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  16. ^"Uluru Statement from the Heart".referendumcouncil.org.au.Referendum Council.Archivedfrom the original on 6 March 2019.Retrieved21 July2018.
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  18. ^abcWyatt, Ken."National Press Club Address - 'Walking in Partnership to Effect Change'".Ministers Media Centre.Retrieved21 July2020.
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  21. ^Atkinson, Geraldine; Stewart, Marcus (4 June 2020)."OPINION: Blak Lives Matter - Which is why we need Treaty".NITV.Special Broadcasting Service.Retrieved4 September2022.
  22. ^Jakubowicz, Andrew; Payne, Anne Maree; Thomas, Archie; Norman, Heidi (11 November 2020)."The Black Lives Matter movement has provoked a cultural reckoning about how Black stories are told".The Conversation.Retrieved4 September2022.
  23. ^Allam, Lorena (20 August 2022)."What is an Indigenous treaty and how would it work in Australia?".The Guardian.Guardian News & Media Limited.Retrieved4 September2022.
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  25. ^Cross, Jarred (7 April 2023)."New NSW Minister for Aboriginal Affairs and Treaty lays out plans".National Indigenous Times.Archivedfrom the original on 10 April 2023.
  26. ^abAfshariyan, Nkayla (7 June 2018)."Australia's first Aboriginal treaty negotiations passed in Victoria".triple j.Australian Broadcasting Corporation.Retrieved15 July2019.
  27. ^Wahlquist, Calla (21 June 2018)."Victoria passes historic law to create Indigenous treaty framework".The Guardian.Retrieved15 July2019.
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  29. ^Kolovos, Benita (21 June 2022)."'Woke tokenism': Victorian MP Tim Smith to defy Liberal party support for treaty authority ".The Guardian.ISSN0261-3077.Retrieved26 August2024.
  30. ^abcKorff, Jens (20 July 2020)."Aboriginal timeline: Treaty".Creative Spirits(in Polish).Retrieved20 July2020.
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  33. ^Australian Associated Press (16 September 2019)."Voting opens for representatives to Victoria's First Peoples' Assembly".The Guardian.Retrieved18 July2020.
  34. ^"About".First Peoples' Assembly of Victoria.24 November 2019. Archived fromthe originalon 10 August 2020.Retrieved18 July2020.
  35. ^Towell, Noel (10 November 2019)."Historic vote, but only 7 per cent turned out for Aboriginal poll".The Age.Retrieved31 December2019.
  36. ^Ilanbey, Sumeyya (16 August 2022)."'Amazing day': Bill to set up Treaty Authority passes state parliament ".The Age.Retrieved26 August2024.
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  40. ^Love, Simon; Roulston, Amy (21 January 2024)."'We don't believe we should proceed with Treaty': Leader of Nationals confirms Coalition U-turn on support for Treaty in Victoria ".Sky News.Retrieved8 September2024.
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  42. ^Smith, Douglas (10 February 2020)."QLD Government receives treaty recommendations after months of consultations".NITV.SBS.Retrieved14 August2020.
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  44. ^Palaszczuk, Annastacia; Crawford, Craig (13 August 2020)."Queensland Government's historic commitment to Treaty-making process".Queensland Cabinet and Ministerial Directory.Retrieved14 August2020.Text was copied from this source, which is available under aAttribution 4.0 International (CC BY 4.0)licence.
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  47. ^Gillespie, Eden (18 October 2023)."Queensland LNP abandons support for treaty with First Nations people".The Guardian.Retrieved20 October2023.
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  50. ^Poloni, Gian De (8 June 2015)."WA Premier signs $1.3 billion Noongar native title deal".ABC News.Australian Broadcasting Corporation.Retrieved14 July2019.
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  52. ^Cawthorn, Michael (22 November 2017)."Traditional Owner Corporations".PBC.Retrieved30 July2020.
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  57. ^Wahlquist, Calla (30 April 2018)."South Australia halts Indigenous treaty talks as premier says he has 'other priorities'".The Guardian.Retrieved14 July2019.
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  65. ^ab"Eighteen months after a report urged truth-telling in Tasmania, has anything changed?".ABC News.28 May 2023.Retrieved30 August2023.
  66. ^"'We've been made visible': Aboriginal Tasmanians celebrate first steps to treaty ".ABC News.25 November 2021.Retrieved30 August2023.
  67. ^Wellington, Shahni (8 June 2018)."Indigenous treaty a step closer after NT Government's historic pledge".ABC News.Australian Broadcasting Corporation.Retrieved14 July2019.
  68. ^abAllam, Lorena (8 June 2018)."NT signs historic Barunga agreement to begin Indigenous treaty talks".The Guardian.Retrieved15 July2019.
  69. ^Gooley, Cameron (15 July 2020)."NT Treaty Commission eyes 2022 submission of final report with consultations to commence".ABC News.Australian Broadcasting Corporation.Retrieved27 August2020.
  70. ^Bardon, Jane (20 January 2023)."Northern Territory Indigenous leader Yingiya Guyula angered by government's decision to close NT Treaty Commission".ABC News (Australia).
  71. ^Garrick, Matt (18 January 2024)."NT government to revive plans for treaty, six years after it was first promised by Territory Labor".ABC News (Australia).
  72. ^"NT Treaty Symposia".Office of Aboriginal Affairs.Northern Territory Government.29 April 2024.
  73. ^"NT opposition rejects treaty plans, commits to wide-scale reform of remote councils".ABC.25 October 2023.Retrieved1 November2024.
  74. ^"NT opposition says they will oppose Treaty".NIT.26 October 2023.Retrieved1 November2024.

Further reading

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